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Monthly Archives: May 2013

This is an essay from my time at The University of Birmingham. I wrote it for the class ‘Post Conflict Peacebuilding and International Order’.

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Introduction

Ensconced within this question is millennia of debate and discussion, and therefore, there are a number of crucial elements that need to be adequately deconstructed in order to satiate the mandate of this paper. The mutuality of the relationship between justice and peace can only sufficiently be addressed after a brief analysis of both ideas on their individual merits. Of course, from an ethical viewpoint the question of justice and peace being mutually exclusive is a misnomer. When viewed through an ethical lens they are intrinsically linked, and dependent upon one another. However, the writing of this paper is burdened with the sad reality of empirical evidence and a history of intervention and peacebuilding that, at times, suggests something quite different. An investigation into the theoretical and conceptual backgrounds of both justice and peace will be necessary. This paper will explore the relationship between justice and the establishment of peace in post-conflict situations and the role that justice plays in the establishment of peace. Transitional justice, especially, will be explored in order to analyse the effectiveness with which peace can be established and maintained in states that are transitioning from a period of protracted and prolonged violent conflict. Order, justice and peace must no longer be interpreted as mutually exclusive concepts, rather they must be pursued interdependently (Taylor, 2001, p.335) – whilst this is a tough mandate it is crucial if peace is to be maintained. It is important also to look at the solidarism and pluralism arguments concerning the nature of international order. This is important because it will highlight the overarching international approach and philosophy towards peacebuilding and implementing peace in post-conflict societies. The analysis of solidarist and pluralist theories will enable an investigation into the constitutional makeup of peace and explore theories regarding positive and negative peace and what is most appropriate as it pertains to a permanent and just peace. Ultimately this paper seeks to address and make an intervention into the field of transitional justice. It will seek to analyse how, if at all, justice contributes to the overarching peacebuilding agenda and the maintenance and promotion of peace.

Peace

The idea of peace is a much more complex one than it first seems – especially when notions of justice being necessary for peace enter the equation. The field of peace studies suggests there are two unique types of peace; positive peace and negative peace.

The idea of a negative peace is characterised simply by an absence of violence, be it a temporary hiatus or cessation of hostilities, it does not work to deescalate the underlying issues that caused the violence. This, for obvious reasons, is an unsustainable and undesirable type of peace – but, nonetheless, despite its inadequacies this is the type of peace that the UN often tolerated until conflict remerged (see for examples cases of Rwanda, Angola, Somalia, etc.) To achieve negative peace, justice is almost totally unnecessary. Not much is needed other than a strong intervening force that can dictate with clarity and direct with relative intellect. Negative peace is easily achievable because the international community, after intervening and bringing peace are reluctant to facilitate an appropriate resolution to the conflict.

Positive peace as a theory is much more credible in terms of post-conflict reconstruction, and at the heart of this type of peace lies justice.

Pluralism and Irresponsibility

For the last number of centuries the international political system has been dominated by a realist interpretation of international polity. This conceptualization of the international system has birthed an overly utilitarian view of peacebuilding. The realist mentality that has dominated the international system has birthed and bred an attitude of scepticism about the assertion that moral norms and principles can exist – and therefore the states that participate in and contribute to this realist interpretation will have only self interest at heart when interacting with the international community (Parekh cited in Wheeler and Bellamy, 2001, p.473). Realist states will not not allow self-interest to become subordinate to a guiding set of moral norms – for them this is not quantifiable and much too arbitrary (Dunne and Schmidt, 2001, p.142). Pluralism endorses this interpretation of the international community and highlights the supremacy of sovereign states to govern freely within their own borders. It fastidiously supports the paramountcy of state sovereignty and non-interference as a congenial approach to the outworking of international politics. Due to the fact that there is no overarching ethical framework that guides the international community, international politics relies on the assumptions of cooperation between states and reasonability – these are the principles by which peace and international order will be held in place. The pluralist position can accommodate enormously different conceptions of justice. Therefore, the pluralist position fails to adequately define what justice looks like when implemented, and thus, fails to provide a governing mandate or ethical rubric against which justice can be measured (Jeong, 2000, pp.294-295). This juxtaposition of uncertain international ethical protocol; non-interference; and protection of state sovereignty highlights the tension that exists about whether or not justice is necessary for peace. The future role for intervenors (e.g. the UN, NATO, etc.) in international conflict therefore is a complicated, but increasingly necessary one (Doyle and Sambanis, 2006, p.3), because it must hold in the balance a number of contesting ideologies about justice, and yet must work towards ‘…conformity with principles of justice’, (The UN, 1945, Chapter 1, Article 1.1) principles which are not clarified or ratified by the international community in the form of an ethical framework. Only international law provides some sort of prism through which justice can be viewed and even in this case the issue is shrouded in ambiguity and complexity. The pluralist position vehemently asserts and violently defends that states have an immediate obligation only to their own citizens (Jeong, 2000, pp.294-295). Pluralists shelter behind the legal status and international veneration afforded to state sovereignty to ensure that issues of justice in post-conflict states that are not their issues to worry about, rather that they are kept simply as side-issues. Pluralism is maintained by the citizens serving the needs of the state – an altogether antithetical view to what most representative democratic countries hold as their inherent values.

It has been argued that there has been a significant paradigm shift over the last few decades with an increased sense of responsibility on the part of the UN and the international community to mandate international standards on human rights and justice (Kritz cited in Newman, 2002, p.31). Whilst these implementations will ultimately support the cause of justice being a central component to lasting peace they will not immediately solve the bureaucratic problems faced by imposing international moral standards. The UN will be quick to defend their reputation citing success stories like Guatemala where they were able to implement adequate transitionary justice structures with some degree of success (UN/USIP, 1994). However the successes are few and whilst the realist and pluralist mindset dominates international relations there will always be a reluctance towards ascribing a cogent notion of justice (Wheeler and Bellamy, 2001, p.486-488). The lack of a clear notion of justice in turn leads to a lack of defining how justice should be incorporated into the peacebuilding agenda. In many cases some conception of justice is ascribed and overseen by the UN, but ultimately issues of justice are largely seen as intrastate matters for the internal host government to control and officiate.

Solidarism and Accountability

In contradiction to pluralism, solidarism rejects the meta-narrative of the pluralist international system. Solidarism is a call to an ethical view of the international system through which members of the international community can subscribe to internationally maintained standards of justice and human rights. Working under the pluralist assumption the international community can claim sanctuary and immunity through their claims to a legal, sovereign status – however, Wheeler calls into question the legitimacy of their claims at the expense of human dignity. Wheeler questions whether or not a sovereign state has the right to legitimately claim sovereignty at the expense of the brazen human rights violations against their own citizens (Wheeler, 2000, p.3, 12). In doing so Wheeler is highlighting one of the most pertinent drawbacks of pluralism; impersonality. The pluralist thesis is happy to assert the supremacy of the state – even at the expense of the citizens that said state is formed to protect. The solidarist argument calls for a more accountable international system and seeks to ensure that states who want to take advantage of a legal sovereign status fulfill their basic requirements of decency towards their own citizens (Vincent cited in Wheeler, 200, p.28). Solidarists are guided by what they perceive to be a moral imperative; to protect the dignity of the human life. Solidarists take a humanitarian development and humanitarian protection approach to peacebuilding, they have an intimate understanding that the protection of the human experience is central to the peacebuilding agenda. This anthropocentric approach to the international system seeks to assert that the sovereignty of a state is a mere social construct, and as such it can be deconstructed and changed to satisfy the moral imperative of upholding justice, because justice is central not only to peace, but to the wider agenda of international stability. One of the most basic tenants of solidarism asserts that societies will enjoy at least minimum standards of human rights and justice. In the solidarist argument justice is paramount to peace, because both rest upon the upholding and paramountcy of the human experience. Within a solidarist paradigm the two are beautifully interwoven and interdependent upon one another. A cogent notion of mutuality exists in the mind of a solidarist – this mutuality is between peacebuilding and justice. They are reliant upon one another and as such are inextricably linked. To the solidarist theoretician, peacebuilding and peace in general is unsustainable unless it is bound with transitional justice and a notion of continuing justice. However, in the realist world of international politics there simply is not enough gain to be won by focussing on creating transitional justice structures, unless, by not doing so the peace is immediately jeopardised (Luck, 1995, pp.79-82).

Transitional Justice in Post Conflict Situations

Thirty years ago transitional justice was barely known as a method of post conflict reconstruction. It had little supporting evidence that was not anecdotal in nature, and it was seen as a sort of utopian idealism (Walgrave, 2003, p.vii). Since then it has burst onto the scene as a contender and tool for the reestablishment of good governance and peace. Transitional justice is the tool by which a country that has been caught in the grips of protracted violence can begin to address the issues of the past with dignity and mutual respect in the present. As a tool in the arsenal of post conflict peacebuilding, the value of transitional justice must not be understated. Transitional justice is best understood in terms of the definition employed by Kofi Annan, UN Secretary General and Nobel Laureate, it is:

…the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include both judicial and non-judicial mechanisms, with differing levels of international involvement (or none at all) and individual prosecutions, reparations, truth-seeking, institutional reform, vetting and dismissals, or a combination thereof. (UN Security Council, 2004 p.4)

From Annan’s summation of transitional justice one can clearly see that it is a comprehensive and certifiable response to violent conflict and is intrinsic to the peacebuilding and peacekeeping process.

Why Transitional Justice?

Transitional justice is a useful mechanism by which countries emerging from conflict can be helped to stabilise, to look back and to remember the atrocities of the past whilst enjoying the safety of the present and anticipate with hope for the future. There is a dual mandate of transitional justice; restoration of legal and political infrastructure to enable the host state to move forward and rebuild peace; and remembrance (rectificatory justice) that involves dealing with past injustices and rectifying the issues that arose because of them in a sincere yet robust manner (Mani, 2005, p.27). Practically and conceptually these mandates of transitional justice must be implemented together. Truth-telling without the action to prosecute offenders, is going to seem shallow and simply a measure to memorialise the troubled past. One must only look at the case of Rwanda, were only rectification was focussed upon to understand the consequences of a singular minded approach. This dual mandate approach allows the process of justice to be addressed in a holistic manner (Mani, 2005, p.27). Addressing the idea of transitional justice from a holistic perspective tends to be the best way to avoid a relapse into further conflict (UN (Boutros-Ghali), 1992, para 21) because the systems that are being introduced are seen as legitimate and not simply arbitrary.

The Role of Transitional Justice

‘Given the nature of contemporary conflict, it is as much a political imperative as a social necessity to address issues of justice in the aftermath.’ (Mani, 2002, p.3). Mani’s insights highlight quite clearly that the role of transitional justice is not simply a shrewd political maneuver, but also a social benefit. Transitional justice can be used to quell and deescalate conflict amongst warring peoples. The political benefits to transitional justice, whilst important, must become subordinate to the humanitarian achievements. Transitional justice has the job of finely balancing the necessity to address the issues of the past and advocate for the need for truth and accountability, but also to secure and imminent peace and stability (Newman, 2002, p.31). Transitional justice is the means by which a state can emerge from violence and rebirth itself into the international community as a credible and legitimate, worthy sovereign state.

Confronting the Past

After a serious violent conflict one of the most dangerous, risky and difficult operations of transitional justice is to confront the past in a holistic, respectful and just manner (Poulingy, 2002). The confrontation of past atrocities can quickly obscure the path to democratic stabilisation if not handled correctly, but the victims’ plight must not be forgotten (Newman, 2002, pp.32-33). Therefore, whilst confronting the past the ground must be tread carefully and a delicate balance must be maintained between the quest for justice and upholding of peace. Addressing the issues of the past is often done most successfully alongside other major types of progress and change. For example, in the case of Guatemala they undertook the establishment of a Truth and Reconciliation Commission (which was facilitated by the UN) alongside restructuring towards a more decentralised and regionalised type of governance. The successful matrimony of these two steps forward paved the way to ensuring that the tenuous peace that existed was not further burdened with unnecessary strain that it could not withstand. This shifted the perspective from being solely on the reestablishment of peace and the correction of past wrongs, but also to the rebuilding of a new state and to moving away from the institutional breakdown that once characterised the state (Newman and Schnabel, 2002, p.1).

There is a debate surfacing about who should benefit from the establishment of truth and reconciliation commissions – for whom is the truth being pursued? It is to vindicate the victims, or to punish the perpetrators? The answer is not clear cut; it is simultaneously both and neither (Mani, 2005, p.30). Both parties need closure from the events of the past – for the victims it is the knowledge that the atrocities of the past will not be repeated and that justice has been served to the perpetrators, and for the perpetrators it is the knowing they will not need to engage in a time of anarchy again – and that after the process of transitional justice has begun they can be declared upright citizens again. Neither parties, of course, want to relive these painful moments – but it is necessary for progress.

Forging the Future

The restoration of political institutions, especially the judicial system, is a key component in the process of transitionary justice. This action begins afresh the process by which the citizens can rebuild confidence in the systems that had failed them in the past. Normal protocol in effective transitional justice would dictate the rapid reestablishment of judicial systems and the state police. In the case of Guatemala, arising out of the civil conflict the judicial system was recognised as an area of vulnerability and structural weakness, and as such, the Guatemalans on both sides of the civil war took swift action to reestablish and rebuild judicial infrastructure (UN/USIP, 1996) because there was an underlying recognition that central to the peace process was effective justice.

Peacebuilding, Post Conflict Reconstruction and Transitional Justice

Peacebuilding and post conflict reconstruction organisations in the contemporary era cannot underplay the significance of transitional justice structures in the quelling of conflict and in the reestablishment and rebuilding of state institutions. Transitional justice has forever changed the peacebuilding agenda in the theoretical world, however there are still not a huge number of cases of successful implementation from which we can draw on from the practical peacekeeping world.

Signs of Hope

Guatemala however does show indications that when a country caught in violent civil conflict reaches a tipping point the implementation of transitional justice models can effectively and swiftly bring about stability, change and rebirth.

For instance over a period of just two years there were nine individual agreements passed that began the process of deescalation of violence in Guatemala. It began with the formation of a truth commission to look back, memorialise and remember the atrocities of the past (UN/USIP, 1994). The Truth Commission was founded to establish the extent of the human rights violations that Guatemalans suffered during the civil war. Also, to publicise their findings in the hope of moving towards harmony and establishing a sustainable peace. This was followed by the agreement on resettling to allow those displaced by the armed conflict a chance to return to their chosen homeland and settle in peace and safety (UN/USIP, 1994a). The resettlement agreement gave the right for the ‘uprooted population’ to return. This has been defined as anyone who has, whether internally or externally, been affected by the conflict. Resettlement guarantees the legal process and right of return to the uprooted population to their place of origin, or indeed, another place of their choosing. The next agreement sought to outline the identity rights of the indigenous peoples (UN/USIP, 1995). This is a particularly salient point because identity was such a major factor in the Guatemalan conflict. The UN recognised the rights of the indigenous peoples and their aspirations to gain control over their own institutions and forms of life. The next agreement was on the social and economic aspects of the peace agreement in Guatemala (UN/USIP, 1996a). It sought to strengthen social participation which meant that indigenous groups would have more control over social and economic decision making. It also sought to decentralise the governance structures to enable more effective and representative participations. The following agreement was about the strengthening of civil power in Guatemala (UN/USIP, 1996). This purported that there was a reshuffle needed the current legislative and judicial system in order to maintain impartiality, peace and justice. The next agreement was one of the shortest, but certainly one of the most significant in terms of transitional justice – the agreement on the definitive ceasefire. In this agreement the URNG (Unidad Revolucionaria Nacional Guatemalteca) agreed to the verification by the UN of the decommissioning of weapons and ceasing of all counterinsurgency activity (UN/USIP, 1996b). Following this was their legal integration into the Guatemalan state as a legitimate political party (UN/USIP, 1996c) which afforded them the same diplomatic rights and representational responsibilities of as other Guatemalan political parties. The final agreement was concerning the constitutional reforms that would be undertaken to ensure that justice would be paramount in the new, reborn Guatemala (UN/USIP, 1996d).

Guatemala engaged successfully in a model of transitional justice and it proved to be extremely beneficial for them. Guatemala is a good example and model for other applications of transitional justice. They engaged in the process over a period of time, they became subordinate to a regulatory body (in this case the UN and the US) and they proactively engaged with the horrors of their past in order to make the requisite changes to enable a successful and prosperous future. The engaged fully and wholeheartedly in the key elements of the transitional justice model – criminal prosecution, truth commissions, reparations, security reform and memorialisation of the past (UN, 2008, p.3-4).

The Relationship Between Justice and Peace

The relationship between justice and peace in an undeniable one. They are inextricably linked, and therefore, trying to maintain peace without justice is, in my opinion, a futile effort because there cannot be true reconciliation without both justice and peace – this of course is working towards the assumption that reconciliation and deescalation is the objective. However, justice is not necessarily vital for (negative) peace to exist – the realist, pluralist interpretation of the international political system dictates that there is no burden of responsibility between states to ensure justice – rather states’ only responsibility to one another is to maintain individual sovereignty and respect principles of non-interference. The dominance of international politics by pluralism dictates that not all members of the international political community are willing to work towards positive peace, and thus by consequence deescalation, and are happy to invoke their right to sovereign independence and non-interference. In order to establish a positive peace there must be a preservation of justice in the international system (Glatung cited in Fetherston, 1994, p.93), that sadly, because of the dominating pluralist assumption in international politics, does not yet exist. The pursuit of positive peace is of course the ideal objective because it takes into account the functions of transitionary justice and seeks to reconcile warring factions and provide the basis for a future. International peace-builders and peacekeepers have a record of proposing solutions as opposed to facilitating them (Mani, 2005, p.33) – therefore the international community still has some way to go before the formal adoption of a doctrine of transitionary justice. Transitional justice does not enjoy the benefits of legal imperative, rather it depends upon political maneuvering in order to forge its path of peace (Newman, 2002, p.48).

Conclusion

Peace is not necessarily dependent on justice – that argument would be opportunistic, naive and reductionistic. However, I would wholeheartedly contend that peace has a much greater chance of being sustainable if justice is present and upheld. Transitionary justice systems, whilst not being the only reason that peace is achievable in failed states or states currently in or emerging form conflict, is certainly one of the pillars on which peace ultimately rests. Successful transitionary justice systems can contribute not only to peacebuilding but to the deescalation of ethnic violence and to proper reconciliation between previously warring factions. One only has to look to Northern Ireland in order to understand the full extent to which that is true. Having endured one of the longest and fiercest periods of protracted, internal conflict, that the West has known, Northern Ireland has emerged and is beginning to, using the principles of transitional and non-retributive justice, deconstruct their past for the sake of building a shared future (Robinson and McGuinness, 2010).

My contention therefore is that transitionary justice is a worthy model of post conflict reconstruction and of peacebuilding and there should be every effort made in the international community to facilitate transitional justice procedures in countries that have experienced turmoil. Whilst justice is not necessary for peace per se it is necessary for the creation of a strong international community that can successfully intervene in situations were human rights abuses are taking place. However, for this to happen the international system as it is currently manifest needs to under go radical shift in paradigm and states need to once again realise that they are to become subordinate to the citizens, not the other way around. The international community must realign their priorities and look at the issues through an ethical lens, and by doing so, become convinced of the fact that truth, justice and peace cannot be pursued as mutually exclusive objectives, rather they are attached to one another in a way that for the good of humanity – they must be pursued together.

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